Court File and Parties

Court File No.: CR17400001540000 Date: 2018/10/22 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown And: W.E.G., Defendant

Counsel: Arian Khader, for the Crown Brittany D. Sherwood, for the Defendant W.E.G.

Heard: September 11 and 28, 2018

Reasons for Sentence of W.E.G.

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

SPIES J. (orally)

[1] On June 26, 2018, W.E.G. was convicted by a jury of the following offences:

(a) Counts # 1 and #4– Assault, contrary to s. 266 of the Criminal Code;

(b) Count # 2 – Uttering a Threat to Cause Death, contrary to s. 264.1 (1) (a) of the Criminal Code; and

(c) Count # 3 – Sexual Assault, contrary to s. 271 of the Criminal Code.

[2] Mr. W.E.G. is now before me for sentencing.

The Facts

(a) Circumstances of the Offences

[3] As this was a jury trial, I must make my own assessment of the evidence to arrive at a factual foundation for this sentencing. In accordance with s. 724 of the Criminal Code, I shall accept as proven all facts expressed or implied that are essential to the jury’s finding of guilt. As for aggravating factors relied upon by the Crown, I must be satisfied that they occurred, beyond a reasonable doubt, bearing in mind the factors in R. v. W.(D.), [1991] 1 S.C.R. 742 as Mr. W.E.G. testified at trial.

[4] Both Ms. A. and Mr. W.E.G. agreed that at the beginning of their relationship in early 2012, everything was going well and they were happy. Ms. A.’s evidence was that the relationship changed around the time when she was one to three months' pregnant. Counts # 1 and # 2 related to the time period when Ms. A. and Mr. W.E.G. were living with his parents after their son was born on February 7, 2013.

[5] It was Ms. A.’s position before the jury that around the time she was three months’ pregnant, Mr. W.E.G. became verbally aggressive with her and started yelling at her for "any type of thing". Once their son was born she testified that Mr. W.E.G.'s verbal aggression towards her became worse and he started to regularly tell her she was a bad mother, and that she was not "good for anything".

(i) Counts #1 and 2

[6] Ms. A. made more than one allegation of what in law amounts to an assault during the period when she and Mr. W.E.G. were living with his parents. The main assault the Crown alleged was the time that Ms. A. testified that Mr. W.E.G. choked and threatened her. She also alleged that he regularly punched her in bed.

[7] I advised the jury that before they could find Mr. W.E.G. guilty of Count #1; assault, that they could find that all of these assaults occurred or that only one occurred. I obviously do not know what the jury found, but clearly they believed the evidence of Ms. A. beyond a reasonable doubt and rejected Mr. W.E.G.’s denial of the alleged verbal abuse and the assaults after applying WD with respect to the alleged choking as that occurred during the same incident alleging that Mr. W.E.G. uttered a threat to cause death in Count #2. The jury did not acquit Mr. W.E.G. of any of the offences. In light of this, for the purpose of sentencing, I accept Ms. A.’s evidence about the assaults the Crown relied upon with respect to Count #1 and in particular that:

(a) Mr. W.E.G. started to develop a habit of coming to bed and giving her punches on her legs, her arms and hands, with a closed fist, to the point where she would have to get out of bed and wait for him to fall asleep. While he was doing this, he was complaining about the fact that she did not love him. This happened perhaps once a week while they were living with his parents.

(b) On one occasion, late one night when Ms. A. was sitting on the edge of the bed, Mr. W.E.G. came into the room and locked the door. Their son was sleeping on the bed and otherwise it was just the two of them in their room. They had been arguing; Ms. A. could not recall what they were arguing about, but Mr. W.E.G. grabbed her by her neck and when she stood up he leaned her against the wall and had both hands on her neck. She was attempting with her hands to take his hands away. Mr. W.E.G. squeezed her neck for about two to three minutes, to the point where she thought she couldn't breathe another moment while she was telling him to stop. Once her face was getting red and she could barely speak, he stopped shouting and went to the bed. Ms. A. testified that she did not sustain any injuries but she did have a bit of pain in her neck as a result. Mr. W.E.G. denied ever putting his hands on Ms. A. and specifically denied every putting his hands on her throat.

(c) During this incident Mr. W.E.G. shouted at Ms. A. and stated, "Just see if someone hears you" and he told her if she wanted a reason to send him to jail, he was going to give her one. Mr. W.E.G. threatened her that before she put him in prison, he was “going to assure myself you are below ground." She took that statement to be a threat that he was going to kill her. This is the evidence that the Crown relied upon in support of Count #2, which the jury clearly must have accepted amounted to a threat to kill Ms. A.

(ii) Count #3

[8] Counts # 3 and # 4 related to the time period when Ms. A. and Mr. W.E.G. were living with his sister M. in a city in Southern Ontario from November 2014 until she left him. Sometime in July or August of 2015, Ms. A. testified that that Mr. W.E.G. sexually assaulted her. She testified that Mr. W.E.G. took her by the arm and threw her onto the bed and that he told her that even though she didn’t love him, that she had to give him “something”. She testified that he pulled her by the legs, they struggled and she tried to stop him because she was in pain from having had a cesarean section and didn’t want to have sex that night. Ms. A. testified that she gave in and Mr. W.E.G. forced vaginal intercourse with her. Clearly the jury accepted the evidence of Ms. A. and rejected Mr. W.E.G.’s denial.

(iii) Count #4

[9] With respect to count #4 Ms. A. testified about two assaults. The first she believed could have been in July 2015, when she testified that Mr. W.E.G. pushed her against a TV that was sitting on a chest of drawers and she fell down to the floor. As she fell, she hit the dresser. She suffered a little bruise on her right arm.

[10] The next time there was alleged violence was when Ms. A. said to Mr. W.E.G. that she wanted to leave the house. He told her that she could, but the baby would stay behind. They were both at the front door of the house and Mr. W.E.G. had the baby in his arms. He told her that she was not leaving until his sister or police arrived. They were pushing each other in front of the door and Ms. A. admitted that this was happening because she was trying to get their son out of Mr. W.E.G.'s arms. Ms. A. testified that Mr. W.E.G. gave her a big push and she fell on the floor right in front of the door.

[11] As for why she did not leave Mr. W.E.G. sooner, according to Ms. A., Mr. W.E.G. would close the door to their bedroom and say that no one was going to help her in case she wanted to leave, and at the end, he would have her child. He told her that if she wanted to leave, he would call immigration and tell them that she had lied about everything she told them and that they would believe him because they were living together and had a child. Ms. A. testified that he said it the whole time, every time they argued and that she was scared and she believed him. She believed that if Mr. W.E.G. called immigration the police would come and lock her up until they deported her. She was scared that her child would end up living with Mr. W.E.G.

[12] As Ms. Sherwood submitted, this element of control in the relationship was not an essential element of any of the charges the jury dealt with. She conceded however that the jury believed Ms. A. to some extent. I agree.

[13] Ms. A. testified that in October 2015 she started to speak to a social worker who had told her that what Mr. W.E.G. had been telling her was not true and that she was allowing this abuse to continue by not leaving him and that she had to make the decision to leave.

[14] Ms. A. testified that she left Mr. W.E.G. once and for all on November 24, 2015. She called the social worker that she had been talking to who came to pick her and took her to a women's shelter. Ms. A. reported the allegations to police the same day.

(b) Impact on the Complainant

[15] Mr. Khader filed a victim impact statement (“VIS”) written by Ms. A. on August 30, 2018. In terms of the impact of the offences on her, Ms. A. states that during her time living with Mr. W.E.G. she felt like she was living in a prison without the bars. Because of the way he treated her, Mr. W.E.G. destroyed her self-esteem, her happiness, her zest for life, and he made her feel that she was useless and a bad mother to their son. She describes her life with Mr. W.E.G. as hell, which Mr. Khader submitted is significant since she came to Canada as a refuge. Ms. A. states that one of the biggest impacts is her fear of losing her son, which she still feels. She is still trying to recover her self-esteem and her identity as a mother, as a woman, and more importantly, as a person. She goes on to state that for the sake of her son she has had the courage to move forward but that the scar of what she lived through will always be there.

(c) The circumstances of Mr. W.E.G.

[16] I received a pre-sentence report (“PSR”) with respect to Mr. W.E.G. dated September 6, 2018. The author of the PSR spoke to Mr. W.E.G., his father, his younger sister M., and a number of his friends, as well as the complainant, and DC Neale, the officer in charge.

[17] I have ignored statements in the PSR that deal with the merits of the allegations against Mr. W.E.G., as that information is not properly part of a PSR. This includes information from Ms. A. as it relates to her allegations save that she does state that there is a Family Court agreement in place, which stipulates shared custody of their five year old son. I was advised that this is facilitated through M., Mr. W.E.G.’s sister, and that she and Ms. A. communicate only by email. In this way there is no direct contact between Mr. W.E.G. and Ms. A.

[18] Mr. W.E.G. was born in Guatemala, and has two sisters and a younger brother. He came to Canada in 1988 with his father and sisters, sponsored by his mother who was already here. He had a positive childhood and upbringing. It seems based on the PSR that Mr. W.E.G. has a supportive network of people comprised of friends and family members who describe him as a “family oriented and respectful person”. Mr. W.E.G.’s family is close and he shares a caring relationship with his parents and siblings. They reside in the same general neighbourhood and socialize each weekend. Mr. W.E.G. is particularly close with his sister, M. He is 38 years old and his only dependent is his son.

[19] Mr. W.E.G. incurred disciplinary consequences during high school and was expelled twice for fighting. He advised the author of the PSR that despite this unruly conduct, his academic achievement was above average, and he got along well with teachers and peers. He did not complete high school, and instead decided to pursue employment. Mr. W.E.G. has been consistently employed since he was 19. For the last one and one-half years, Mr. W.E.G. has been working in home renovations, and his employer is aware of this conviction and is currently accommodating his schedule related to providing care for his son. He told the author of the PSR that he is quite content with his employer and the nature of his work.

[20] There is no evidence that Mr. W.E.G. has a drug abuse problem but there are some concerns about alcohol. Mr. W.E.G. told the author of the PSR that his current use of alcohol is comprised of one to two beers while watching a hockey game, and that he has not consumed any alcohol since November 2015 in order to maintain compliance with his conditions of bail. Monica confirmed this information as his surety; Mr. W.E.G. is residing with her as a term of his bail. Additional persons who the author of the PSR spoke to in support of Mr. W.E.G. also reported an absence of substance use related issues. Ms. A., however, told the author of the PSR that although she could not speak to the amount of alcohol Mr. W.E.G. consumed, he engaged in daily drinking and this affected his demeanor to the degree that it exacerbated his temper.

[21] Mr. W.E.G. denied committing the offences he was convicted of and told the author of the PSR that they were as a result of a false accusation made by Ms. A. in order to gain Canadian permanent residence status. He advised the author of the PSR that he intends to appeal his sentence; I presume his convictions as well.

[22] The collateral sources contacted by the author of the PSR described Mr. W.E.G. as a respectful person, and related that the offences were out of character. These sources included two previous romantic partners who told the author of the PSR that Mr. W.E.G. was a respectful partner person of good character, who had never behaved in an inappropriate manner toward them.

[23] DC Neale told the author of the PSR that Mr. W.E.G. had engaged in “victim blaming for his conduct” and that some of his family members “enable him”. She added that he has contacted Child Services regarding Ms. A. “as a means to trouble her”. I have ignored this information as in my view the author of the PSR should not speak to the Investigating Officer for his or her views on issues such as remorse; and the other point made was not proven by the Crown and is therefore not something I can consider as an aggravating factor.

[24] Mr. W.E.G. has a dated criminal record. He was convicted on February 23, 2000 for assault and received a suspended sentence and 12 months’ probation. Mr. W.E.G. would only have been 19 at the time. I understand that during this incident Mr. W.E.G. confronted a male who had accosted his sister M.

[25] On April 8, 2003, Mr. W.E.G. was also convicted of possession of a weapon (a knife) and again he received a suspended sentence and 12 months’ probation with two day’s credit for pre-sentence custody. He had just turned 23 at this time. Mr. W.E.G. told the author of the PSR that he became involved in an altercation with two males who had become unwelcome guests at a gathering hosted by his parents, and that although he had consumed alcohol, he was in control of his faculties. He commented, however, that with hindsight, he would have simply avoided the matter, and that one makes unwise decisions when young.

[26] With respect to these convictions Mr. W.E.G. completed two periods of probation and there were no breaches; he responded positively to community supervision. He has also been on bail for these charges since his arrest in November 2015. Apart from a few days he has never been in custody before.

[27] Mr. W.E.G. filed numerous character reference letters from his family members, friends and employer. His employer confirms that he is aware of his situation and that he is hard working and an asset to the company and that he has never had any issues with Mr. W.E.G. because of alcohol or drug abuse. A client of his employer also speaks positively about Mr. W.E.G.

[28] The letters from Mr. W.E.G.’s parents, his sister M. and his older sister E., all speak very positively of Mr. W.E.G. The theme in all of these letters is that Mr. W.E.G. is the real victim and that he did not commit these offences and that the complainant lied during the trial and that a huge injustice to him has occurred and that he should not be punished for something he did not do. I have ignored those portions of the letters that deal with the merits of the allegations Ms. A. made.

[29] In terms of friends, one of the letters is from a woman who dated Mr. W.E.G. for one year when they were in high school. They have been friends since. She states that Mr. W.E.G. was never abusive towards her and that she can only say good things about him. She too does not believe he is guilty of these offences and asserts that the complainant lied.

[30] Finally there is a letter from a police officer with York Regional Police who is a family friend. It is troubling, given that she is a police officer, that she too disagrees with the verdict and states that she does not see how Mr. W.E.G. will be “rehabilitated by spending time in jail for crimes that I believe he did not commit”. As Mr. Khader submitted I would have expect more from a police officer and her views certainly call into question her judgment.

[31] These letters are only helpful to the extent that they show Mr. W.E.G. has strong support from his family, employer and friends and that these offences are out of character. Ms. A. testified that no one in the family witnessed any of the physical assaults and so I view the letters in that context. Nevertheless, the fact that the members of Mr. W.E.G.’s family and friends do not accept the jury verdict is troubling.

[32] As is his right, Mr. W.E.G. elected not to address me during the sentencing hearing.

Legal Parameters

[33] The convictions for assault and uttering a threat to cause death carry a maximum sentence of five years. The conviction for sexual assault carries a maximum sentence of ten years. There are no minimum sentences for any of the convictions.

Positions of Crown and Defence

[34] Mr. Khader ask for a global sentence of four years as well as various ancillary orders namely, a s. 109 order for life, a DNA order on the primary ground, and that Mr. W.E.G. be registered under the Sex Offender Information Registration Act for 20 years. He also requested a non-communication order with the complainant while Mr. W.E.G. is incarcerated, pursuant to s. 743.21 of the Criminal Code.

[35] Mr. Khader took no position on how I should allocate the proposed four year sentence although he suggested that two and one-half years of the sexual assault which included choking, one year consecutive for the common assaults, each to run concurrently to each other and six months consecutive for uttering a threat to cause death would be reasonable.

[36] Ms. Sherwood submitted that the appropriate range in this case was a global sentence of two to three years and that a two year sentence was appropriate. She argued that all of the convictions could be considered a single transaction. She suggested that two to two and one-half years is appropriate for the sexual assault, which is the most serious conviction and that the other sentences should all run concurrently to that sentence.

[37] Ms. Sherwood took no issue with any of the ancillary orders requested by the Crown save for the s. 109 order as there were no weapons involved in any of the offences. That order however is mandatory by virtue of s. 109 (1) of the Criminal Code as violence was used in the commission of these offences.

[38] Mr. W.E.G. was arrested on November 24, 2015 and released on November 25, 2015 and Mr. Khader conceded that based on two days’ custody he is entitled to a credit of three days for pre-sentence custody on a 1:1.5 basis.

Sentencing Cases

[39] Both counsel submitted a number of cases in support of their respective positions and I thank them for preparing summary charts of those cases. Although I did read all of the cases I only intend to refer to the cases that I found most helpful in coming to my decision.

[40] Counsel agreed that in R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832, the Ontario Court of Appeal set out the range of sentence for the convictions that I have to sentence Mr. W.E.G. on. Those ranges are meant to be a guide only for trial judges but to ensure parity, they are important. In particular at para. 85, the court stated that sentences for uttering a death threat in circumstances similar to those in that case tend to range from the imposition of a suspended sentence to six months’ imprisonment. The court went on to say at para. 86 that a sentence of one to two years will generally be appropriate for a conviction of common assault based on facts such as those comprising count 10 which were committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse. Finally, at para. 87, the court stated that sexual assault involving forced intercourse with a spouse generally attracts a sentence in the range of 21 months to four years.

[41] In Smith, the trial judge found the offender guilty of ten offences in the context of three long-term domestic relationships. All of the convictions were quashed save for three in relation to two of the complainants; namely, uttering a death threat to the complainant D.Q. and assault and sexual assault of the complainant M. Leave to appeal sentence was granted.

[42] With respect to D.Q., in count 9, the offender was found to have threatened her by telling her that he could kill her at any moment and that no one would be the wiser. She thought he was joking but she later saw a hole dug in the back of their property, which the offender said was a “test hole” related to construction taking place on the property.

[43] Count 10 related to M. who had alleged that the offender had repeatedly assaulted her between 1978 and 1984 by pinching her legs, elbowing her in the stomach, throwing forks at her, whipping the back of her legs with a wire, grabbing her hair, hitting her on the back of her head and kicking her. The sexual assault of M., count 12, occurred after the relationship ended. M. had told the offender that she did not want to have sex with him but she eventually gave in believing she had no choice.

[44] Like Mr. W.E.G., Mr. Smith had one previous assault conviction although he had only received a fine for this offence and was otherwise a law abiding member of the community. At the time of sentencing he was 66 years old, much older than Mr. W.E.G. and was being held to account for many actions that took place when he was in his 20’s.

[45] The court went on to consider the question of whether sentences should be served consecutively or concurrently. It is significant to note that as the Crown had chosen not to cross-appeal sentence the court held (at para. 89) that the sentence imposed could not exceed three years in total, but contrary to what the trial judge did, the sentences should be consecutive. Given the fact that the sentences had to add up to three years, I prefer to consider the ranges set out by the court that I have already referred to although I appreciate that they are intended only as a guide.

[46] The court held that a fit sentence for count 9, uttering death threats to D.Q., was two months and in relation to M.; count 10 - ten months and count 12 - two years and that counts 10 and 12 be served consecutively with each other and consecutive to the sentence for count 9 for a total sentence of three years. In a footnote the court set out the two competing approaches for sentencing an offender for multiple offences, which I will come back to.

[47] The cases that Mr. Khader provided to me, that I found most helpful are as follows.

[48] R. v. N.H., 2017 ONSC 2493; a decision of Justice Allen. In that case a jury found the offender guilty of three counts of sexual assault and one count of assault. The offender and the complainant were married, the offender called her names, forced her to fellate him, and forced vaginal intercourse on her. This happened three times over the course of a nine-month relationship. The offender also punched a wall near the complainant’s face and threatened he would hit her face the next time. He also threatened her on another occasion. Justice Allen found that the aggravating factors were that this was a domestic relationship, the offender was in a position of trust - this had been an arranged marriage. The offender threatened to deport the complainant. He used force during sexual assault, he threatened the complainant’s brother and he forced the Complainant to leave the home after nine months of marriage. The offender was very controlling and called the complainant names and as a result she was emotionally scarred. Justice Allen sentenced the offender to four years.

[49] Although the offender in N.H. was found guilty of three sexual assaults, including fellatio, there was not choking. The offender was only 28 at the time of the offences and he had no criminal record. In my view even though Allen J. was sentencing the offender for three sexual assaults, overall the circumstances of this case are reasonably comparable to the case at bar in terms of parity of sentence.

[50] In N.H. the Defence asked of two years of custody, which Allen J. found was not appropriate on the facts before her. She stated at para. 31 that:

The cases with lower sentences than four years involve circumstances not present in the case at hand such as: a guilty plea and a show of remorse; fewer incidents of sexual abuse; less violent and controlling relationships; an abusive upbringing; psychiatric and drug addiction problems; and good prospects for rehabilitation.

[51] I agree with that conclusion and it applies to the case at bar. Allen J. found that the facts before her were most aligned with R. v. N.T., 2011 ONCA 114 where the Court of Appeal upheld a sentence of four years imposed by Tulloch J., as he then was, for an offender who was found guilty by a jury of sexual assault and assault x2. The offender and the complainant were married. The trial judge had found that the offender controlled the complainant and he did not want her to work or associate with people outside of his family. There was both verbal and physical abuse and what the trial judge found was a psychological imprisonment. In particular, the offender punched her and dragged the complainant and he forced sexual intercourse with her on a number of occasions.

[52] The Crown referred to one of my decisions; R. v. V.J., 2016 ONSC 6035, where I found the defendant guilty of assault x2, utter threat x2, assault with a weapon x2, sexual assault and unlawful confinement in the context of a domestic relationship. Ms. Sherwood submitted that this decision is the closest factually to the case at bar, although I note the sentence I imposed in that case was 35 months.

[53] In V.R., the offender and the complainant were married. On separate occasions, the offender twisted the complainant’s wrist, threw her to the ground by her hair, threatened to kill her, hit her with a rolling pin and slipper (the “weapons”), had forced intercourse with her while holding her down, and called her names. I found that this had a significant impact on the complainant and the aggravating factors included the fact that this occurred in the context of a domestic relationship, in the complainant’s home, there was an escalation of the violence, the complainant was vulnerable, the violence had escalated and the offender showed no insight. The offender had no criminal record, character letters were filed and he had maintained employment.

[54] In R. v. A.S.H., 2015 ONSC 3316, Daley J. sentenced an offender who had been found guilty by a jury of sexual assault and choking. The offender and the complainant were in a common law relationship although separated at the time. The offender surreptitiously entered the complainant’s home and when she confronted him he pinned her to the floor and choked her. The offender then removed the complainant’s clothing, head-butted her and forced vaginal intercourse on her. She suffered bruises and abrasions. The offender had a dated criminal record from 1990 to 2006; the most significant related conviction being assault, utter threat, and fail to comply from 2006.

[55] Daley J. found that the aggravating factors were that the sexual assault took place in a domestic context albeit the parties had broken up, it had a significant impact on the complainant, the violence was significant in that it resulted in bruising and abrasions, it occurred in her home, the assault continued despite the fact that the complainant was fighting back, the choking was accompanied by a threat and it prevented the complainant from seeking help.

[56] Justice Daley sentenced the offender to five years of the sexual assault and two years for the choking, to run concurrently. He found at para. 49 that although the offender had said that was “sorry”, he appeared to have no insight into the seriousness of his conduct and had demonstrated little if any interest in rehabilitation. Given his criminal record, Justice Daley held that:

[…] considering the offender’s profile as is demonstrated in his criminal conduct involving the victim, and in the evidentiary and informational record available at the time of his sentencing hearing, the offender represents a risk of reoffending by the commission of further violent crimes.

[57] Ms. Sherwood submitted that the decision of R. v. Priest, [1996] O.J. No. 3369 from the Court of Appeal should be front and centre in my decision. She referred to para. 23 of that decision where the court held that even where a custodial sentence is appropriate a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the defendant rather than solely for the purpose of general deterrence. She also argued, as stated in para. 24 of Priest that emphasis on individual deterrence rather than general deterrence is particularly applicable in the case of a youthful first offender. I note that at para. 23 the court also referred to R. v. Curran (1973), 57 Cr. App. Rep. 945 at pp. 847-8 for the proposition that as a general rule a first sentence of immediate imprisonment should not be “disproportionate to the gravity of the offence”. That of course is a principle now found in s. 718.1 of the Criminal Code, which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. On this basis, I do agree that the principles in Priest should apply.

[58] Of the other cases Ms. Sherwood provided, she submitted that R. v. B.S.R. was the closest to the case at bar. I note however that this decision predates Smith and is dated as compared to the decisions provided by the Crown. I therefore did not find it to be of much assistance. This was true of a number of the other cases she provided to me. The other cases I found were not as close to the facts of this case as those I have referred to that Mr. Khader provided to me.

Principles of Sentencing

[59] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

[60] By virtue of s. 718.2 (a)(ii) the fact Ms. A. was a common law spouse is a statutory aggravating feature. Although Ms. Sherwood has argued that it does not apply, if I can characterize the relationship between Mr. W.E.G. and Ms. A. as one of trust or authority, then pursuant to s. 718.2 (a)(iii) the fact Mr. W.E.G. abused that trust or authority is also a statutory aggravating feature.

[61] As I will come to, the Court of Appeal has made it clear that the principles of denunciation and deterrence, both general and specific, are of particular importance in cases involving domestic violence.

Determination of a Fit Sentence

[62] It was Mr. Khader’s position that there is a real risk that Mr. W.E.G. will re-offend and in particular that the risk of his re-offending for further violent offences is high. He relied on the fights that occurred in high school, Mr. W.E.G.’s criminal record, these convictions and the fact that Mr. W.E.G. has no insight into his behaviour, which he submitted reduced the prospect of rehabilitation.

[63] In my view I should not take into account what happened when Mr. W.E.G. was in high school. I know very little about those incidents and they occurred when Mr. W.E.G. was very young; a youth. I therefore do not put the same weight as the Crown on what Mr. Khader called a pattern of violence. That said, although there is no evidence of violence in the context of other relationships with women that Mr. W.E.G. has had the fact he had been convicted of previous assaults and his lack of insight into the offences committed against Ms. A. concerns me. I cannot conclude that he is not at risk of reoffending.

[64] Mr. Khader also submitted that I should view the character reference letters with caution and that I cannot assume that they did not turn a blind eye to what the jury found happened. He submitted that in fact these people would not assist with Mr. W.E.G.’s rehabilitation since they all believe that he has been wrongfully convicted. It is unlikely in these circumstances that Mr. W.E.G. would take advantage of any relevant programming while in custody. I agree with this submission. Unfortunately Mr. W.E.G.’s family and friends feel so strongly that he did not commit these offences that beyond the fact that they obviously will provide him with love and support, I cannot count on them to assist in his rehabilitation.

[65] Mr. Khader also submitted that Mr. W.E.G.’s alcohol use as reported by Ms. A. is a concern. I agree, but unless Mr. W.E.G. chooses to deal with this issue while he is in custody, since I am not imposing a term of probation I have no ability to direct that he do so.

[66] Ms. Sherwood submitted that the fact this will be Mr. W.E.G.’s first time in custody and the fact that his sentence even on her proposal will be served in the penitentiary is a significant deterrent to Mr. W.E.G. to prevent him from reoffending. I agree with that submission. She also submitted that Mr. W.E.G. is the primary financial provider for the support of his son and pointed out that Ms. A.’s evidence at trial was that she was receiving social assistance and child support. That is not a factor in my view that I should take into account in reducing what would otherwise be a fit sentence.

[67] Ms. Sherwood argued that N.H. can be distinguished in that Ms. A. was not actually controlled by Mr. W.E.G. in that she had the support of family if needed, she had an immigration lawyer helping her with her refugee application and that she was capable of accessing resources. Although there is some merit to this submission, the fact is that although Ms. A. left Mr. W.E.G. twice she always came back. Her fear of being deported and losing her child gave him control, which he exploited in his threats.

[68] Ms. Sherwood submitted that the fact this was a domestic relationship does not automatically mean that it was a relationship of trust. She also argued that even if Mr. W.E.G. had some control over Ms. A. and that she was vulnerable, that does not mean that he was in a position of trust. Mr. Khader disagreed and referred to the decision of R. v. Dunlop, 2014 ONCJ 44 at paras. 33 and 67 where the court, relying on the Alberta Court of Appeal decision of R. v. Brown, 1992 ABCA 132, [1992] A.J. No. 432, where the court held that any offence of domestic violence is necessarily a breach of trust. I agree with that conclusion and in my view given the authority and control that Mr. W.E.G. exercised over Ms. A. there is no doubt that he abused that trust and authority over her by committing these offences. As Mr. Khader submitted, a breach of trust or authority is also a statutory aggravating feature.

[69] During the course of submissions I raised with counsel my concern about whether or not I could use the fact that Mr. W.E.G. has demonstrated a lack of insight as an aggravating factor given his right to maintain his innocence. Mr. Khader advised me that this is permissible, relying on the case of R. v. T.A.P., 2014 ONCA 141 at para. 13 and R. v. Shah, 2017 ONCA 872 at para. 8 for the proposition that the absence of insight is relevant to issues related to rehabilitation and specific deterrence and demonstrating the future likelihood of future dangerousness. The court made it clear however that the absence of remorse should not be treated as an aggravating factor per se. It is on this basis that I have considered Mr. W.E.G.’s lack of insight into these offences and in particular the fact that this will hamper any rehabilitation.

[70] In my view the following facts are aggravating factors in this case:

(a) Pursuant to s. 718.2 (a)(ii) of the Criminal Code, the fact Mr. W.E.G. assaulted Ms. A., his common law spouse, is an aggravating factor recognized by Parliament. For reasons already stated this was also a breach of trust and so s. 718.2 (a)(iii) also applies.

(b) The offences took place in the homes where Mr. W.E.G. and Ms. A. were residing; places that were meant to be one of comfort and security.

(c) The sexual assault occurred with their young son in the bed although I appreciate that he would likely have been too young to appreciate what was going on. The fact Mr. W.E.G. would sexually assault Ms. A. in these circumstances is nevertheless aggravating.

(d) The sexual assault involved full penetration and is very serious. One of the common assaults included Mr. W.E.G. choking Ms. A., which combined with this threat to kill her, is particularly serious. The other common assaults were less serious but nevertheless part of the ongoing mental abuse Mr. W.E.G. subjected Ms. A. to.

(e) Although Ms. A. did not suffer any serious physical injuries as a result of these assaults, based on her VIS I find that she has suffered significant emotional harm although there is no evidence that she has gone to see a psychiatrist or is taking any medication.

(f) Ms. A. was in a vulnerable position in that she came to Canada as a refugee, although she was a designated refugee when she met Mr. W.E.G.. Her refugee claim was still outstanding and she was afraid that she would be deported from Canada without her son. She was living with Mr. W.E.G.’s family members although I appreciate she did have support available from her siblings and in fact she left Mr. W.E.G. twice. Nevertheless, Mr. W.E.G. exploited Ms. A.'s vulnerability with his assaultive behaviour and threats to have her deported and take away her son.

[71] As I have already stated, Mr. W.E.G. maintains his innocence with respect to these convictions, which is, of course, his right. He cannot be penalized for insisting on his right to a trial and an appeal but he does not get the benefit of a reduced sentence because of a guilty plea and an expression of remorse. This is a neutral factor. It does mean, however, that there is no evidence that Mr. W.E.G. has any insight into the impact of his actions on Ms. A.

[72] Certain aggravating factors present in other cases were not present in this case; particularly, Mr. W.E.G. at no time used a weapon when he was assaulting Ms. A.

[73] In terms of mitigating circumstances, I note that Mr. W.E.G.’s criminal record is dated, this is the first time he has been convicted of offences in the context of a domestic relationship and he has the support of close family members and friends although as I have already stated, that is a bit of a two-edged sword. I agree with Mr. Khader that given Mr. W.E.G.’s friends and family do not accept that he is guilty of these offences they will not help Mr. W.E.G. change, be rehabilitated and find a sense of responsibility for these offences. Also mitigating is that Mr. W.E.G. has complied with the terms of his bail since November 2015. In addition, despite the acrimony between Mr. W.E.G. and Ms. A., it does appear that with the assistance of the court, he and Ms. A. are working out a system of shared custody and access in a reasonable way which is in the best interests of their son. There is no evidence that Mr. W.E.G. is not complying with this order.

[74] Both counsel submitted that the sentence I impose should be determined on a global basis, looking at all of the convictions together, and bearing in mind the principle of totality. As already stated, both Mr. Khader and Ms. Sherwood submitted how their suggested global sentence should be allocated among the various convictions. A significant difference between their positions was whether or not the sentences should run consecutively or concurrently.

[75] Counsel did not argue the issue of whether or not the sentences should be concurrent or consecutive. In V.R. the issue of whether or not to follow the approach in R. v. Jewell (1995), 83 O.A.C. 81 (C.A.) and fix an appropriate global sentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within the already determined global sentence was before me. In Smith this approach was disapproved of (at para. 88) but that was because the court found there was no relevant nexus between the offences committed against D.Q. and M., including those in relation to M. only. In the case at bar there is only one complainant but like the complainant M., the offences include both assaults and a sexual assault that occurred at different times.

[76] In V.R., I followed the alternative approach described in the footnote to Smith and assigned a fit sentences for each offence and designated those sentences as concurrent or consecutive and then as a final step considered the total sentence to ensure it did not offend the principle of totality. In that case however, counsel did not refer me to the decision from our Court of Appeal; R. v. R.B., 2013 ONCA 36 at para. 30 where LaForme J.A. held that the proper approach is set out in Jewell.

[77] For these reasons then I find that I should decide what sentence is fit, based on a global sentence. Having regard to the cases, I find that a fit sentence would be somewhere between 42 and 48 months. Given the principles in Priest, I have decided that a global sentence of 42 months less three days for pre-sentence custody is an appropriate sentence that addresses the need for general and specific deterrence, the gravity of the offence and Mr. W.E.G.’s moral culpability.

[78] In my view this global sentence should be allocated as follows: two and one-half years for the conviction of sexual assault; Count #3; one year for the conviction of common assault; Count #1, which included Mr. W.E.G. choking Ms. A., which is an aggravating factor to that conviction, to run consecutively to the sentence on Count #3, eight months on the other offence of common assault; Count #4, which included two less serious assaults, to run concurrent to the sentence on Count #1 and six months imprisonment for uttering a threat to cause death; Count #2, which shall also run concurrently to the sentence on Count #1, given this threat was made during one of the assaults.

Disposition

[79] Mr. W.E.G. would you please stand.

[80] With respect to your conviction on Count # 3 – sexual assault, contrary to s. 271 of the Criminal Code, I sentence you to a period of two and one-half years in custody, less three days’ credit for pre-sentence custody;

[81] With respect to your conviction on Count # 1 - assault, contrary to s. 266 of the Criminal Code; I sentence you to one year in custody which sentence shall run consecutively to your sentence on Count #3;

[82] With respect to your conviction on Count # 2 – uttering a threat to cause death, contrary to s. 264.1 (1) (a) of the Criminal Code; I sentence you to six months in custody which sentence shall run concurrently to your sentence on Count # 1;

[83] Finally, with respect to your conviction on Count # 4 - assault, I sentence you to eight months in custody which sentence shall run concurrently to your sentence on Count #1;

[84] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) (a) of the Criminal Code for ten years.

[85] I also make a DNA order in Form 5.03 authorizing the taking of a DNA sample pursuant to s. 487.051(1) of the Criminal Code.

[86] In addition, pursuant to ss. 490.012(1) and 490.013(2) (b) of the Criminal Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years.

[87] In addition, pursuant to s. 743.21 of the Criminal Code you are to have no contact with Ms. A. either directly or indirectly while you are in custody.

SPIES J. Released: October 22, 2018